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LIVING UP TO THE COMMONWEALTH CHARTER? A HUMAN RIGHTS PERSPECTIVE
The Commonwealth Charter should be one of the association’s chief glories. On the face of it, it could be. After all, 10 years after its adoption, we’re reflecting on a joint commitment by more than 50 states to uphold democracy, good governance and human rights. That’s a big achievement, even if the price of reaching consensus means the Commonwealth Charter stops well short of some specific commitments in the most controversial areas.
The Commonwealth Charter was intended to be short - an accessible statement of core values which might strengthen the Commonwealth and perhaps make it seem more relevant and modern to its citizens all around the world.
In Britain, when the text was formally presented to Parliamentarians in March 2013, the UK Government made clear its view of both the scope and limitations of the Charter.
“We recognise that the Charter is not an exhaustive document. It is an overarching summary which brings together the values and commitments of the Commonwealth that are set out in more detail in previous declarations and affirmations.”
That points to a risk inherent in the Commonwealth Charter - that by avoiding detail, it may even dilute those earlier Commonwealth declarations which contained more comprehensive and often more demanding commitments. Those declarations still exist, but can governments and legislators choose to ignore them because something newer and perhaps less demanding is now in place?
By the time of the Commonwealth Charter’s adoption in 2012 and its formal signing by the late Queen Elizabeth II in 2013, had the Commonwealth already reached its own highwater mark standing up for human rights, good governance and the rule of law? Was the Commonwealth already retreating from the commitment to, and enforcement of, its own internal rules?
If so, when was that high water mark?
Harare Declaration of 1991
I feel myself lucky to have started reporting regularly from Commonwealth Summits by attending first the Commonwealth Heads of Government Meeting (CHOGM) in Harare in October 1991. It felt like an annus mirabilis - a miraculous year - for the organisation in the warmth of early spring in the southern hemisphere.
Nelson Mandela was there - not yet elected to lead South Africa, of course - but at least finally out of prison for the past year and a half.
His presence underlined that this was the Commonwealth’s golden moment after decades when the member states had responded to public opinion and campaigned so vigorously against apartheid. The Commonwealth had (with the exception of Britain) acted largely in unison to isolate and sanction South Africa for the many obscenities of rigid racial segregation, and the cruelties and violence used to maintain white supremacy.
The achievement of that CHOGM over 30 years ago was the adoption of the Harare Declaration. It greatly strengthened the shared commitment to fundamental and inalienable human rights, including the right to participate in free and democratic political processes, as well as the right to the rule of law, the independence of the judiciary, and just and honest government.
Crucially, the Harare Summit also opened the way for the Millbrook Declaration four years later, which established the Commonwealth Ministerial Action Group and thus armed the Commonwealth with punitive powers against member governments who erred and strayed from the Commonwealth's shared fundamental political values, including the separation of powers, the rule of law and human rights. Movement on protecting rights seemed to be very much in a positive direction.
A Commonwealth with teeth
What followed was a period of new Commonwealth assertiveness in the field of human rights and (to some extent) a period of what might be called global leadership by Commonwealth example.
The Commonwealth Ministerial Action Group (CMAG) was - and should still be - a powerful court of Commonwealth Foreign Ministers to punish serious violations of the Harare Declaration. A group of countries serve in rotation.
CMAG’s initial focus in the mid-1990s was on dictatorships and coups d’état. That meant business was brisk. The Action Group had to confront a significant number of military leaders who had seized power or outright civilian autocrats who had abandoned democracy. There were undoubted successes for CMAG, including suspensions from membership of countries including Fiji, Nigeria, Pakistan and Zimbabwe. I can’t think of another association of states which has done half as much to police and to punish its own.
Importantly, the language that CMAG used in its official public pronouncements was notably muscular and blunt.
So, for instance, here’s an extract from the Concluding Statement of the Group after a meeting at Marlborough House in London on 6 June 2000: “CMAG unanimously condemned the use of armed force against Fiji's democratically elected Prime Minister and his government by a group of extremists and expressed concern over the subsequent imposition of martial law in Fiji Islands and the abrogation of the Fiji Constitution Amendment Act (1997) which constituted serious violations of the Commonwealth's fundamental principles, as enshrined in the Harare Commonwealth Declaration. The Group decided that according to the steps set out in the Millbrook Commonwealth Action Programme on the Harare Declaration, Fiji should forthwith be suspended from the councils of the Commonwealth, pending the restoration of democracy and the rule of law in that country.”
But the clarity of that messaging didn’t last. The mandate of the Ministerial Action Group was extended in 2011, so that (according to the Commonwealth Secretariat website): “…it could engage more proactively and constructively with countries where Commonwealth fundamental political values are at risk. The group now assesses concerns such as the unjustified postponement of elections, egregious violations of human rights, the undermining of the judiciary, lack of space for the opposition, and systematic constraints on civil society and the media.”
Coincidentally or not, the period since that enlarged mandate seems to have resulted in years of pronouncements which appear far more guarded, far less targeted, perhaps even bland and toothless.
This is an illuminating extract from the concluding statement of CMAG’s most recent session in March 2023, the day after a highly symbolic signature was added to the new Charter:
“ 4. Ministers noted that this year marks the 10th Anniversary of the signing of the Commonwealth Charter by Her Late Majesty Queen Elizabeth II…
5. Ministers reaffirmed their support for the Secretary-General’s Good Offices, a mechanism to protect and promote those values and principles. Ministers welcomed the report from the SecretaryGeneral on her Good Offices engagements with member states…
6. In line with its strengthened mandate, the Group continued to review developments in some Commonwealth member states and noted emerging and evolving situations that may require the Secretary-General’s Good Offices…”
Note the failure to name any member state and the vagueness of “emerging and evolving situations”.
Note too that we’re back to an emphasis on “Good Offices” rather than either exemplary public pressure from Ministers or any hint of possible future punishment to encourage better behaviour across member governments. This far blander, private approach is hardly going to excite citizens, still less inform them of what’s actually being done in their name.
Does it signal a Commonwealth in retreat from peer group pressure at the highest level? Pressure which can create a positive climate where people can believe that their own government really does have to account for itself in a transparent way to other governments.
CMAG feels weaker over time. It needs to be stronger.
Lessons for Legislators
Legislators as well as governments need to be especially vigilant to ensure states uphold Commonwealth standards and values to their fullest extent, particularly in the areas of good governance, the rule of law and human rights.
Parliamentarians are key to ensuring that international human rights law and standards are properly implemented under domestic legal systems. Legislators play a unique role in adapting national legislation to give effect to a State's international obligations, and this includes the Commonwealth Charter.
The Commonwealth Human Rights Initiative (CHRI) is a small charity with big ambitions: to champion, defend and try to embed rights wherever and whenever we can.
I would point to just a couple of areas of particular concern where CHRI has focussed its limited resources…
Ending contemporary forms of slavery
Slavery, however much it’s often disguised and hidden from view, exists in modern form throughout the Commonwealth.
The latest Global Estimates report that 50 million people were living in modern slavery in 2021.1 Of these people, 28 million were in forced labour and 22 million were trapped in forced marriage. The 2018 Global Slavery Index reported that 40% of those enduring modern slavery were living in the Commonwealth. Modern slavery had risen significantly in the last five years.
At CHRI, we are proud of our efforts, particularly providing the Secretariat for the Commonwealth 8.7 Network, a global coalition of 90 civil society organisations with a shared vision to eradicate contemporary forms of slavery, forced labour and human trafficking. Together, through collective effort they are committed to reporting on these abuses of individual rights and advocating for positive action to combat them.
One of many ways that Parliaments can help is by ensuring that legislation to outlaw slavery is up to date and provides, where necessary, for proper punishment of offenders.
I say “proper punishment of offenders”, because another focus of CHRI’s work, led from our Delhi office in India as well as in Accra in Ghana, is on efforts to protect the rights of detainees and sentenced prisoners in those regions.
Access to Justice and the treatment of detainees and prisoners
It’s often been said that a good measure of the health of a democracy is the way it treats its prisoners. There are often few votes to be gained through positive police and prison reforms, but the rights of those in detention or in custody need to be defended and protected. The CHRI police reforms programme aims to strengthen police accountability in the Commonwealth. In the regions of South Asia and East Africa where the programme is active, policing is often characterised by brutality, torture, partiality, illegal arrest and detention, corruption and frequent abuse of due process. CHRI works with the police, governments, independent institutions and civil society actors to improve policing, advocating for human-rights based, accountable police practices.
We also believe that a person behind bars is not beyond justice. We strive to ensure that legal safeguards reach out to the last person in the queue – the prisoner, by increasing transparency of a traditionally closed system. We stress monitoring of prison conditions, enhancement of legal aid mechanisms, reform of prison management and fostering cooperation between the various agencies of the criminal justice system, in particular the judiciary, prison administration and police, legal aid providers, lawyers and probation officers.
Because police and prison services need to work within the law, sometimes the laws surrounding the entire criminal justice system need to be strengthened and safeguards instituted to meet the requirements of international human rights and humanitarian law, but also about the function of governments and other entities that impact our lives.
In addition, laws that guarantee access to information are indispensable for empowering people and embedding transparency in public affairs. CHRI continues engagement with government bodies as well as citizenry in South Asia and Africa in law making and implementation processes in relation to access to information legislation, as only 35 of 56 Commonwealth member states have enacted Right to Information (RTI) laws, and several face issues in implementation.
Keeping up with the highest evolving international standards in human rights
There are plenty of immediate opportunities for the Commonwealth to show how it is living up to its Charter. In Zimbabwe, the conduct of the August council, parliamentary and presidential elections under the scrutiny of a Commonwealth Observer Group, as well as its human rights record will be crucial factors in the continuing assessment of the case for the country’s possible return to membership. It’s going to be hard for Zimbabwe to earn its way back. It should be hard. The Commonwealth Charter demands that.
In Uganda, the persecution of the LGBT+ community is a huge cause for concern. Placed alongside other breaches of the Charter’s values, the country’s leaders have a substantial case to answer. Here too, the credibility of the Commonwealth Charter is at stake.
Another big cause for concern is the regular use of intimidation and violence against journalists in many parts of the Commonwealth. It’s often just one tool in wider political repression designed to shrink the space for civil society to play its full and vital role in genuine democracy.
Here too the Commonwealth has a great opportunity to strengthen the Charter.
The Commonwealth Charter states that the Commonwealth is “committed to peaceful, open dialogue and the free flow of information, including through a free and responsible media, and to enhancing democratic traditions and strengthening democratic processes.” The new 'Commonwealth Principles on Freedom of Expression and the Role of the Media in Good Governance' were adopted by the Commonwealth Law Ministers in November 2022. The degree to which all member states live up to the agreed standards to protect media freedoms and journalists will be a further test.
The direction in which the Commonwealth Charter points is very clear - there needs to be constant effort to strengthen good government and good governance, to protect fully functioning democracy, the rights of civil society organisations and of individuals including, of course, the right to free expression.
The best way of celebrating the 10th anniversary of the Commonwealth Charter is simply to meet its obligations and, whenever possible, to exceed them.
The Commonwealth Human Rights Initiative (CHRI) is an international, independent, non-governmental organisation that works towards the practical realisation of human rights across the Commonwealth. CHRI has offices in London, UK; New Delhi, India; and Accra, Ghana. Since 1987, it has focused on human rights issues related to Access to Justice, Access to Information, Media Freedom and Freedom of Expression, and Contemporary Forms of Slavery, Forced Labour and Human Trafficking. Visit www.humanrightsinitiative.org for further information.
